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L.H. v. P.H.

March 12, 2010

L.H., PLAINTIFF-RESPONDENT,
v.
P.H., DEFENDANT-APPELLANT.



On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Camden County, Docket No. FV-04-2185-09.

Per curiam.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted January 4, 2010

Before Judges Sapp-Peterson and Espinosa.

Defendant P.H. appeals from the February 19, 2009 final restraining order (FRO) issued under the Prevention of Domestic Violence Act (Act), N.J.S.A. 2C:25-17 to -35. The court entered the order after finding that defendant's act of slashing plaintiff's dress with a steak knife was egregious enough to qualify as the predicate crime of criminal mischief, N.J.S.A. 2C:17-3 and N.J.S.A. 2C:25-19(a), and warranted the issuance of the FRO to prevent further abuse. See N.J.S.A. 2C:25-29(b). We affirm.

The evidence presented at the FRO hearing disclosed that plaintiff and defendant have been married since 2003 and have one son born in 2006. Plaintiff testified that in October 2008, she and defendant began discussing a separation and agreed to seek an uncontested divorce. On January 27, 2009, defendant asked plaintiff if they could reconcile. When plaintiff refused, defendant became angry and accused her of cheating on him. Defendant then went into plaintiff's bedroom, took out a dress belonging to her, went to the kitchen to grab a four-inch steak knife, returned to the living room where plaintiff was standing with their young son and repeatedly slashed the dress with a knife, stating "this is what happens when you disrespect me." Plaintiff, who was standing at arm's length from defendant, picked up their son to get him away from defendant, moved to the other end of the room and begged defendant to stop. Defendant ignored her pleas and continued to slash the dress. Plaintiff called a neighbor to come over and then went upstairs when the neighbor arrived. Plaintiff explained that she did not call the police that night because she still hoped that things would cool off and the situation could be resolved peacefully. The parties continued to reside in the home together for the next few days, although plaintiff indicated that she barricaded herself in her bedroom each night out of fear. However, as the week progressed, defendant "got worse" and "nastier."

On January 31, plaintiff asked defendant to sign divorce papers. Defendant became enraged, kept hitting himself and asked plaintiff if she wanted him to return to his "old ways," which plaintiff believed, based upon what defendant had told her about his past, was his history of physical violence toward his former girlfriends. The next morning, plaintiff went to the police station to file a criminal complaint and seek a temporary restraining order (TRO), which the court issued.

In his testimony, defendant admitted to slashing plaintiff's dress. He explained that the dress had been given to plaintiff by another man and that she placed the dress in a drawer they shared, which he viewed as an act of disrespect. He also admitted that plaintiff was about five feet away when he started slashing the dress. He denied, however, telling plaintiff "this is what happens when you disrespect me." He also denied threatening plaintiff and simultaneously pounding his chest when speaking to plaintiff several days later after she asked him about signing divorce papers.

After considering the evidence, the trial judge determined defendant's behavior was "sufficiently egregious" to constitute domestic violence even without a prior history of abuse. The trial court found plaintiff's testimony more credible than defendant's, citing, in particular, her demeanor as a witness under both direct and cross-examination, noting her "excellent eye contact," her candor in stating when she could not remember certain facts, and her relaxed body language. The court contrasted her demeanor with defendant's stoic demeanor, initial lack of eye contact with the court, the fact that he never looked at his attorney, and found, from his testimony, that defendant was "very angry about the allegations that his wife was cheating[.]" The court concluded that plaintiff's testimony was more credible than defendant's. The court further concluded that defendant's cutting of the dress was intentional and constituted the predicate act of criminal mischief. The court was also satisfied that plaintiff's failure to immediately seek a restraining order did not vitiate the need for the issuance of the FRO:

So while this incident occurred on [January 27] . . . and it wasn't reported until the [February 1], the [c]court finds that it was reasonable for the plaintiff, pursuant to a domestic violence victim, to sit there and hope that things would get better, and it was only until she couldn't take it anymore that she'd go in and decide that she needed to have the protection of the courts and the police.

The present appeal followed.

Defendant raises the following points for our consideration on appeal.

POINT I A FOURTEEN[-]YEAR LINE OF CASES SHOWS THAT A DEFENDANT'S CUTTING OF ONE ITEM OF A PLA[I]NTIFF'S CLOTHING (THAT SHE IS NOT WEARING AT THE TIME) IS NOT THE "EGREGIOUS" TYPE OF ACT THAT BY ITSELF JUSTIFIES A FINAL DOMESTIC VIOLENCE RESTRAINING ORDER. IT IS EVEN CLEARER WHEN THE PLAINTIFF CONTINUES TO LIVE WITH THE DEFENDANT FOR FIVE MORE DAYS BEFORE SHE GOES TO THE ...


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